Mr. MCGOWAN. I do not know the history of that, Judge, but I imagine that they made some showing before the Secretary of the Interior, and probably prevailed upon him to put down the second indemnity limits in Montana.

The CHAIRMAN. How long ago was that adjusted, the Crow losses?

Mr. McGowAN. I think those limits were laid down, the second indemnity limits, in Montana in 1902. Is that about the date, Judge?

Mr. PROUDFIT. I could not say.

Mr. WILLIAMs. Mr. McGowan, as I read section 3 of the law of 1864, and as I read section 1 of the law of 1870, and disregarding any decisions of the courts, with which I am not familiar, really I do not see where there is anything in the section that I have just referred to that would give the railroad company any right to go into either the first or the second indemnity limits for lands which may have been held by Indians and with reference to which they had any claims for rights; and if that is at all correct, then the only thing left would be the question that I raised a little while ago, whether there is not a definite, absolute undertaking and obligation upon the part of the Government to extinguish those Indian rights in whatever way it may accomplish it, and if it can not do that, or has not done it, then that question, it seems to. me, might be very seriously urged against the Government in the final legal action and accounting that is contemplated by the position that you take before this committee.

I wonder if I am at all right in that.

Mr. McGowAN. Of course it is possible to raise that question, and it is a thing that would have to be given most serious consideration. My offhand impression, though, is that that would not avail the railroad company anything under the present decisions of the Supreme Court, which hold that these reservations are excepted from the grant, and that for all the losses sustained thereby, the railroad company is entitled to make indemnity selections. Then if you put it on the basis of the right to make indemnity selections, of course they can not come back and put it on the basis that it was an obligation on the part of the Government to wipe out all the Indian title within the reservation. That, of course, is pretty far afield, but it seems to me that that would be the logical position to take in connection with that point.

Mr. ABERNETHY. Has the court ever held on any of these cases-raised the question about the position of the railroad company being not one of a purchaser, but as receiving benefits and gifts without any consideration of these questions? Has it dealt with the railroad on that basis in any of the decisions?

Mr. McGowAN. I think possible that best answer to that is this: That the grant to the company, at the present day at least, is regarded by the Supreme Court as a legislative contract with obligations on both parties.

Mr. ABERNETHY. And sufficient consideration passed between the parties, the benefits of the land on the part of the Government and the benefits of the construction of the railroad?

Mr. McGowAN. The benefits would work both ways.

Mr. RAKER. Do you say that the Supreme Court has held that under that last section, the last paragraph of section 2, it is the duty of the Government to try and cancel and clear all Indian titles in the primary limits to the odd sections for the railroad company?

Mr. McGOWAN. No, sir; I could not say that.

Mr. RAKER. Do you find any place where they attempt to decide that question?

Mr. McGOWAN. Let me answer your question this way: You will have to always make this distinction on that point; that is, as to lands within Indian reservations and to lands covered only by Indian occupancy.

Mr. RAKER. I am talking about reservations now, particularly.

Mr. McGoWAN. Specifically and excluding the others?

Mr. RAKER. Yes.

Mr. McGOWAN. I would answer your question "No." But for those lands the railroad company got the indemnity selection rights. The Government was not required by the Supreme Court, and I do not know that the railroad company is asking it-the Government was not required by the Supreme Court to extinguish Indian title to the lands within the Indian reservation, but those Indian lands were lost to the railroad company and the railroad company was given indemnity selection rights therefor.

Mr. DRIVER. And they accepted lands in lieu thereof.

Mr. RAKER. It seems to me that some ordinary horse sense would be applied to the construction of the statute, applied to the last sentence in subdivision 2. There was 100,000 acres in an Indian reservation through which the railroad

runs. The Government never intended by such legislation to say that the Government should clear the title of those Indians to every odd section and leave every other section, every even section, in the title of the Indians to that great tract of land. It seems to me that the intent was to give one thing, which was very reasonable, and that is to clear the right of way from the Indian title.

Mr. ABERNETHY. In answer to that, do you think there is much horse sense shown when they gave them all this land?

Mr. RAKER. I did not put it that way.

Mr. ABERNETHY. Why not?

Mr. RAKER. No; this is the construction of a statute-what it meant and what its operation would be and the intent, irrespective of the words used. The Supreme Court said that the Government should clear the title of the right of way to the Indian reservation, and I do not think we should construe that language of the court to mean that the Government should clear the title of every odd section of Indian land within the reservation, thereby leaving every other section, every even numbered section, in the Indian title and have a checker board all over an Indian reservation. It seems to me that would be answered by the mere fact of stating the question that such a thing would not be considered or thought of.

Mr. McGOWAN. May I restate that again, Judge? Maybe I do not have that quite clear.

For the lands in the Indian reservation, the Indian title stayed there. The right of the railroad company never attached. They were lost to the railroad company-speaking now with reference to the reservations. For the lands lost by reason of the Indian reservation the railroad company was given the right to make indemnity selections.

Mr. RAKER. I understand your explanation of that, and you have given that a number of times, and there has been no variation in it; but what I was stating was that the Government in extinguishing the Indian title to the lands through which the railroad runs, it seems to me it must be conceived that it applied solely to the right of way, because the Government is about the only one that would be able to take up and adjust and extinguish the Indian title over the Government's right of way, 200 feet on either side of the track, so that they would have a perfect title.

Mr. DRIVER. Extinguishing the title is found in section 2, which deals independently of the land grants, except as to right of way purposes.

Mr. WILLIAMS. I think Judge Raker's observation is further borne out by the fact, too, that the last section of that sentence in section 2 says, in connection with this extinguishment, "as rapidly as may be consistent with public policy.' That qualification is in there.

Mr. ABERNETHY. The policy with reference to the Indians is not very creditable to the United States.

The CHAIRMAN. In connection with this I want to state positively my position. I want to offer this suggestion-"and acquired in the donation to the (road) named in the bill." The only donation, is the right of way, is it not? They have to earn the odd sections. I just want to leave that thought with you. I do not want to pursue it now.

Mr. ABERNETHY. I think it is a very good thought to leave, too, giving them all this land and taking all the Indians' land, and than give them all the national parks.

No

Mr. RAKER. I wonder if Mr. McGowan has stated the substance of these reports that he referred to-was it the Forty-sixth Congress? The whole subject was up then before the Senate and House, and they left it in a status quo. action has been taken since that time. I wondered if it would be of value to have those reports printed in our hearings in connection with this testimony. They certainly are illuminating. I would ask they are hard to get-Mr. Chairman, and I would ask that they be printed in connection with Mr. McGowan's testimony.

The CHAIRMAN. What are those?

Mr. RAKER. This entire matter was before the Committee on Public Lands in the Forty-sixth Congress.

The CHAIRMAN. How voluminous is that?

Mr. RAKER. It is quite voluminous. There are about three reports, minority, majority, concurring opinion, Senate report, report of the Judiciary Committee, minority and majority report. And even at that date, way back in 1884, they figured up there that the railroad company had been paid in full and they should have no more, and the matter was just stopped there.

The CHAIRMAN. What is the wish of the committee on that?

Mr. DRIVER. I think it would be very valuable to have these reports. The CHAIRMAN. Would it not be better to have them printed as separate documents, instead of putting them in with the testimony?

Mr. RAKER. I would like to have it printed as one volume of the hearings, so that it comes right in consecutive order. Any way will suit me.

The CHAIRMAN. Well, without objection that may be done. Will you supply them with your testimony, Mr. McGowan?

Mr. McGowAN. Yes, sir; House Report 1256, Forty-eighth Congress, first session (1884); House Report 1283, Forty-seventh Congress, first session (1882); House Report 1179, Fifty-first Congress, first session (1890). I would like to call your attention in connection with these reports to which Judge Raker has referred, as having this weigh: If you read those and arrive at the conclusion that the House committee at that time report 1256 was correct, then you know that your own body, not somebody else, arrived at that conclusion. It seems to me that there is that much weight added to them.

Mr. RAKER. That is the reason I am asking that they be submitted.

[House Report No. 1256, Forty-eighth Congress, first session]

The Committee on the Public Lands, to whom were referred sundry bills for the forfeiture of the land grant to the Northern Pacific Railroad Co., submit the following report:

Your committee have given the subject matter of this grant patient, careful, and thorough consideration. They are satisfied that the grant was one in praesenti upon condition subsequent; that by breach of such condition the grant, along the entire line so far as it was uncompleted on the 4th day of July, 1879, is, and has been since said date, subject to forfeiture, and that justice to the United States and her citizens now require that a forfeiture and restoration of the lands to the public domain should be declared by act of Congress. To accomplish that result and at the same time protect purchasers of the company's title prior to January 1, 1884, and actual settlers and owners of valuable improvements on the odd sections adjacent to the uncompleted portion of said road who settled or made said improvements with bona fide intent to secure title through the company, your committee have prepared a substitute for said bills, and herewith report the same to the House and recommend its passage.

In view of the fact that the conclusion to which your committee have arrived was earnestly combatted by learned counsel in elaborate argument and briefs, we deem it proper to refer somewhat minutely and in detail to what we consider the most material points of the case, especially as it was urged that the grant to this company was in certain features an exception from the otherwise unbroken line of forfeitable grants, an isolated example of unparalleled generosity on the part of the United States in giving away millions of acres of the public domain without any provision for resuming its title even upon absolute failure of the company to fulfill its part of the contract. That such a construction in effect of the granting act was not only seriously but earnestly and forcibly urged by learned and distinguished counsel for the company, is the apology of your committee for what might otherwise be deemed an unnecessary elaboration of the subject under consideration.

The act of Congress containing the grant to this company was approved July 2, 1864 (13 Stat. 365), and the grant itself was in extent the most munificent of all the princely donations made in the era of liability to aid in the construction of railroads, being for 20 miles along the entire line in all the States and 40 miles in all the Territories through which the line might be located, with the right of indemnity selection within 10 additional miles, afterwards by subsequent act (16 Stat. 278) enlarged to 20 miles, for all lands lost in the grant in place.

The land affected by the grant and subject to its operation was in fact all oddnumbered sections in a belt of the public domain extending over 2,000 miles from Lake Superior to Puget Sound, 40 miles in width in all the States and 80 miles in width in all the Territories through which the line should be located. The consideration of this munificent grant, as specifically declared by the act itself, was "to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores" over said railway (sec. 3), "to promote the public interest and welfare by the construction of said railroad and telegraph line," to keep "the same in working order," and "to secure to the Government at all times, but particularly in time of war, the use and benefits of the same for postal, military, and other purposes." (Sec. 20.)

39564-251-PT 1—13

Section 3 of the act, embracing the grant of lands, was in the following words: "SEC. 3. And be it further enacted, That there be and is hereby granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States and ten alternate sections of land per mile, on each side of said railroad, whenever it passes through any State, and whenever, on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption or other claims or rights at the time the line of said road is definitely fixed and the plat thereof filed in the office of the Commissioner of the General Land Office; and whenever prior to said time, any of said sections or parts of sections, shall have been granted, sold, reserved, occupied by homestead settlers or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections,

* *

Section 5 of the act was in the following words:

"SEC. 5. That the said Northern Pacific Railroad shall be constructed in a substantial and workmanlike manner, with all the necessary draws, culverts, bridges, viaducts, crossings, turnouts, stations, and watering places and all other appurtenances, including furniture and rolling stock, equal in all respects to railroads of the first class, when prepared for business, with rails of the best quality, manufactured from American iron. And a uniform gauge shall be established throughout the entire length of the road. And there shall be constructed a telegraph line of the most substantial and approved description to be operated along the entire line: Provided, That said company shall not charge the Government higher rates than they do individuals for like transportation and telegraph service. And it shall be the duty of the Northern Pacific Railroad Company to permit any other railroad, which shall be authorized to be built by the United States or by the legislature of any Territory or State in which the same may be situated, to form running connections with it on fair and equitable terms." Section 8 of said act was in the following words:

"SEC. 8. And be it further enacted, That each and every grant, right, and privilege herein are so made and given to and accepted by said Northern Pacific Railroad Company upon and subject to the following conditions, namely, that the said company shall commence the work on said road within two years from the approval of this act by the President and shall complete not less than fifty miles per year after the second year, and shall construct, equip, furnish, and complete the whole road by the fourth day of July, anno Domini eighteen hundred and seventy-six."

Section 9 of the act was in the following words:

"SEC. 9. And be it further enacted, That the United States make the several conditioned grants herein and that the said Northern Pacific Railroad Company accept the same, upon the further condition that if the company make any breach of the conditions hereof and allow the same to continue for upwards of one year, then in such case, at any time hereafter, the United States, by its Congress, may do any and all acts and things which may be needful and necessary to insure a speedy completion of said road."

The period fixed by the eighth section of the granting act above quoted within which the road was required to be completed was subsequently extended to the 4th day of July, 1879, as appears from the following facts: The joint resolution of May 7, 1866 (14 Stat. 355), extended the time two years, and the joint resolution of July 1, 1868 (15 Stat. 255), amended section 8, the original granting act, so as to read "July 4, 1877." On June 11, 1879 (General Land Office Report, 1879, pp. 109-111), the Secretary of the Interior held that the effect of these two joint resolutions was to extend the time to July 4, 1879. In this view your committee concurs, and we adopt that date as the expiration of the period of limitation.

The total length of the line as located and proposed, including the Washington Territory branch, was 2,270 miles. Prior to July 4, 1879, there has been completed 531 miles of road, leaving 1,739 miles uncompleted at the expiration of the time limit. (See report of Secretary of the Interior for 47th Cong., Ex. Doc. No. 144, p. 41.) In round numbers and estimated, 10,675,200 acres are by the bill reported conceded to the company and 27,539,840 acres subjected to forfeiture.

The considera on of the case involves two general and leading questions: First, the power of Congress to declare a grant of public lands forfeited for breach of condition subsequent; second, whether, this power being established, there are any features in this particular case excepting the grant from the general rule. The power of Congress to declare forfeited a grant of the public lands, made to either a corporation or a State, by an act containing a clause providing that the lands should revert upon failure to build the road within a specified time, is established beyond all controversy by repeated decisions of the Supreme Court. It is specifically so held in United States v. Repentigny (5 Wall. 211) and Schulenburg v. Harriman (21 Wall. 44).

Following these cases is another which even more unequivocally defines the power of Congress in this regard. In Farnsworth v. Minnesota & Pacific Rail

road Co. (92 U. S. 66), the court, considering the question, said:

"A forfeiture by the State of an interest in lands and connected franchises, granted for the construction of a public work, may be declared for noncompliance with the conditions annexed to their grant or their possession, when forfeiture is provided by statute, without judicial proceedings to ascertain and determine the failure of the grantee to perform the conditions."

Following these authoritative expositions of the law, as well as the reasons and sense of the principle involved, your committee have uniformly held that jurisdiction existed in Congress to declare these grants forfeited and have reported several bills to accomplish that purpose, some of which have already passed the House. We adhere to this position in the case under consideration.

Your committee are also clearly of the opinion that there is nothing in the provisions of the Northern Pacific act which takes it out of the category of grants upon condition subsequent, liable to forfeiture for breach of condition.

The question turns upon a consideration of sections 3, 5, 8, and 9, hereinbefore quoted. The company claim that they constitute an absolute dedication of the lands to the purpose of constructing the road; that there is no condition subsequent whatever, and that the only power in the United States is the power through Congress to adopt such measures as may be necessary to insure the completion of the road, in case the company does not build it.

On the other hand, your committee regard this construction as utterly untenable, and are clearly of the opinion

1. That section 8 of the act declares a condition subsequent, viz, that the road shall be completed within a certain time, upon breach of which the grantor may declare a forfeiture.

2. That section 9 is in no way repugnant to section 8, but while embracing all that is included therein, and to that extent perhaps cumulative, is also, in connection with section 5, a declaration of further and additional conditions subsequent, for breach of which Congress may interfere to protect the rights of the United States.

3. That under either of said sections, or both together, the United States, by Congress, has the right to declare the grant forfeited for failure to build the road within the limitation.

I

Section 8 is perfectly plain in the language used and the purpose contemplated. It declares in so many words that the grant made is given by the United States and accepted by the company "subject to the following conditions, namely, that the said company * * * shall construct, equip, furnish, and complete the whole road," etc. This is too plain for any construction. Congress intended to provide, and did provide, that the road should be completed within a certain time, and that that should be a condition of the grant. If a condition, the grant is determinable upon its breach, at the option of the grantor.

The argument of the company rests upon the absence of express words declaring a reversion in case of the breach. That, in the judgment of your committee, was entirely unnecessary in order to create an estate upon condition subsequent. The estate so conditioned is created by declaring the condition, not by declaring the result of its breach. The latter, reentry or its equivalent, follows as matter of legal effect. Every lawyer knows the result of a breach of condition subsequent. and the statement of that result in any grant adds nothing to the previous description of the estate created. The land does "revert" by operation of law upon the breach being enforced by reentry or its equivalent; but the right to that reentry depends upon no express provision that the land shall revert. It stands upon the condition declared and its breach. Upon this point we quote